This subject rears its ugly head from time to time and I'm not all that sure how I can answer it, so therefore I don't try. It probably needs a specialist family law solicitor to give a proper reply, although I hasten to add this is not a query on my own account.

Occasionally we find posters on this site who are faced with financial demands from their ex's which are totally outrageous - well in excess of anything they are likely to receive. Such demands may have their origin in a ( mistaken ) belief that the judge will ' split the difference ' between the wife's demand and the husband's offer, so the higher the wife's demand, the higher the final settlement will be.

Anyone in that position, faced with a wife who is making totally unrealistic demands and refusing to budge , can be faced with a choice of two ways to be ruined. He cannot afford to concede the claim being made against him - but neither can he afford to contest the claim - other than by self repping.

How do you advise someone in this position ? And to what extent do the Courts consider it to be ' litigation misconduct ' to adopt negotiating positions which are completely over the top ?

Mike

Mike,

you raise a very interesting point.

In my case stbx over valued the house by some 200k. I suppose his sols cannot be blamed for that - although they did have a court ordered valuation which was accurate .... But someone was encouraging him to go for 50% of the house AND saying I shd have none of his pension - after 19 years with 3 kids. Mediation was never even mentioned but I even met him face to face to suggest we sit round a table with sols if necesary to sort it out. He agreed but as soon as his sols heard about it , nothing happened He seemed to be prepared to let them do as they pleased and rack up huge bills on needless and inflammatory letters ... many of them just plain rude.

Net result was ... dragged to FH and in the end he got exactly what he was offered and rejected at FDR. But no chance of comeback for me .. and a nearly 30k legal bill cos he wd not be reasonable .. plus 20k (legal aid) for him.

There has to be a better way ..

Hmm

HAdenoughnow

Hal,

It's not quite my point but I can see where you are coming from.

You cannot blame a solicitor for looking after his client's interests.

But sometimes solicitors can give clients unrealistic expectations of the likely outcome. There is a difference between arguing for a settlement for the client which, although generous, is within the range of the possible, and on the other, making demands which have no chance of being met.

As an example, I remember one man who wife was claiming 87% of his income, leaving him worse off than he would be on benefits. There is ABSOLUTELY NO CHANCE that a Court would make an order which had that result. So why was the claim made ? Was it that the solicitor was deliberately stirring things up ? Or was it that he claimed that because the client told him to ? You don't know.

The other point, Hal, is that I have come across many posters on wiki who were clearly expecting less than they were likely to get. I have no financial interest at all in the advice that I give or the outcome, but if a client is being short-changed I will tell him or her that this is my opinion ; but won't go too far in the other direction and encourage the making of absurd demands either.

Hadenoughnow

I think your experience only proves my point. As an aside - a solicitor acting for a legally aided client who is playing silly beggars or persisting in absurd demands should theoretically report the facts to the LSC. Quite apart from the fact that legal aid is a loan. I wonder how many solicitors actually do this.

It's not that there isn't a solution. There is, and you don't need an IQ of 200 to work it out.

Mike

How does an individual assess what is fair and equitable in all the circumstances of the case when there are no standards and no standard practice - when you hear that people in roughly the same situation as you come out with entirely different settlements?
You get one shot at it - why limit your demands when you know the chances of being penalised for litigation misconduct are minimal and the rule is : if you don't ask you don't get- if you demand you might get.
My solicitor failed to instruct my barrister to negotiate for things that I now know are standard - no-one stopped the proceedings and demanded I should get what someone in my circumstances would get automatically in another court area or with a better solicitor.
The system forces you to pitch for everything you can get.
There are no rules and no standards.

Hi Mike

Interesting question, thanks for putting it up. I am going to split the response into 2.

Firstly - the client who comes to you with the unrealistic expectation, fueled usually by chatting to friends who will state that they received X Y Z without the client realising how fact dependent this area is.

Facing that client my approach is to give very blunt clear advice as to the reality of the situation and the general band as to what they could expect to receive. Some will take their business elsewhere, most question you at length as to why their friend received XYZ and I am saything that this person will not, and some (usually the smallest group) accept the information and go on from an informed point of view - these are the people who usually are able to settle the case as they are accepting of advice and able to look at their case in a reasonalbe way.

If I am instructed to persist with an unrealistic stance I do set out in writing that they are proceeding against advice, what I think the outcome would be, and set out clearly that in my opinion they are likely to force the case to final hearing which will cost XXX.

Turning to how you deal with a person on the wrong side of an unrealistic negotiating stance, the answer is with a lot of sympathy! All you can do is tell him or her what it will cost to fight it, and respond to unrealistic offers with a lengthy response set out almost like a skeleton argument, and make it clear that is the position you would adopt at court. Sometimes it works, sometimes not, and a final hearing is ultimately the outcome.

I usually also speak to the otherside pre first directions, agree we will get an indication then to test the unreasonable person's response to that, and if that is negative, ask to leapfrog to final hearing in order to save the costs of an FDR which is highly likely to be wasted.

As to how the courts deal with unreasonable positions....oh how I miss the costs consequences of the Calderbank! The bar to demonstrate litigation misconduct is so high that costs orders are ridiculously rare, which I personally think is grossly unfair when an early unrealistic position is adopted.

Amanda

Hiya

Are solicitors duty bound to

a) Give an estimate of what is or is not achievable financially and the chances of getting it?

b) Give an estimate of the costs involved to get there ?

c) Make at least one offer to settle at some point during the process ?

I am self repping and Stbx's sol has made no contact with me whatsoever. I only know he wants a clean break and 50% of assets because that's what he put on his form E, otherwise I'd be completely in the dark.

Can I be sure he is getting advice ?

poppy